National Ocean Council (NOC)

On Friday, the Federal Register published Notice of the National Ocean Council (NOC) Committee’s finalized principles for determining seafood species at risk of Illegal, Unreported, and Unregulated (IUU) Fishing and seafood fraud, as well as a list of “at-risk” species developed using these principles.

Both the list of principles and the list of species are intended to inform the development of a traceability program to be implemented regarding seafood sold in the U.S. market. As explained in the Notice, this traceability program is to be developed in the future “through notice-and-comment rulemaking, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act . . . .” This rulemaking process “will address data requirements, the design of the program, and the species to which the first phase of the program will be applied.”

The list of species published Friday identifies those seafood products that are of special concern. According to the Notice, “the species list has been developed to identify species for which the current risks of IUU fishing or seafood fraud warrant prioritization for the first phase of the traceability program.”

The NOC Committee identified sixteen groups of seafood products as being “at-risk” species for the purposes of the initial phase:

Abalone

Albacore tuna

Atlantic cod

Bigeye tuna

Blue crab

Dolphinfish

Groupers

Pacific cod

Red king crab

Red snapper

Sea cucumber

Sharks

Shrimps

Skipjack tuna

Yellowfin tuna

Swordfish

Explaining its inclusion of shrimp within the “at-risk” category, the NOC Committee commented:

Shrimp: Shrimp is produced through both aquaculture and wild harvest. The working group found that shrimp is at risk of IUU fishing activity due to the history of fishery violations. Shrimp is also often processed and co-mingled, which can make it vulnerable to seafood fraud. There is a significant amount of mislabeling and/or misrepresentation of shrimp, tied largely to misrepresentation of weight, including where product has been treated with Sodium Tripolyphosphate to increase water retention (the lack of labeling is fraudulent, not the use of Sodium Tripolyphosphate). Mislabeling is also a concern because aquacultured product is sometimes labeled as wild caught and product origin is sometimes falsified. Additionally, there is a history of substitution of one species of shrimp for another when imports cross the border into the United States.

The NOC Committee’s decision to include shrimp in the list of “at-risk” species is consistent with the Southern Shrimp Alliance’s continuous advocacy for the inclusion of shrimp in the initial phase of the traceability program. In its most recent comments to the Committee, filed on September 3, 2015, the Southern Shrimp Alliance encouraged the inclusion of all shrimp species, product and processing types in the final list. Although the NOC Committee declined to include all species of certain seafood products, the Appendix attached to the Federal Register notice included “All Shrimp Species in the Order Decapoda” and provided a list of such species maintained by the Food and Agricultural Organization.

While all shrimp species were included in the “at-risk” species list, the issue of the scope of the traceability program with respect to product type has been reserved for future resolution. In response to a request from another commentator that cooked seafood be excluded, the NOC Committee observed that the “product types that will be a part of the program will be delineated in the traceability rulemaking process . . . .”

The Southern Shrimp Alliance’s September 3

rd comments also included a request that the Committee expressly recognize harmful antibiotics, as well as pathogens, as a source of human health concern for consumers in its consideration of the risk posed by certain seafood species. In response, the NOC Committee clarified that “[t]he application of the human health risk principle did include the use of harmful or unlawful antibiotic use.”

Although the Southern Shrimp Alliance’s submissions to the Committee have strongly advocated for the inclusion of shrimp, other comments submitted to the NOC Committee included express requests for the exclusion of shrimp from the “at-risk” species list and, in result, the first phase of the traceability program. The Global Aquaculture Alliance (GAA), for example, requested that shrimp be removed from the “at-risk” species list. Although the argument presented in support of that request is not clearly presented, the GAA raised the specter of negative consequences to market access:

The proposed requirement has already raised doubts in the aquaculture supply chain abroad about whether access to the U.S. market will be closed off or restricted for shrimp and other farmed products deemed at risk, based on allegations of IUU fishing that shrimp processors and the farmers who supply them have no capability to address.

The National Fisheries Institute’s (NFI) jeremiad regarding the NOC Committee’s traceability initiative generally includes the following assertion critical of the consideration of shrimp:

The IUU designation of imported shrimp in particular is at odds with the trade flows and the realities of commercial shrimp production. That is because about 90 [sic] of U.S. consumption of shrimp is imported, and the vast majority of that is farmed product. Of remaining U.S. consumption, most is of domestic, wild-capture shrimp – which is exempt from the Task Force’s proposal. Thus, in designating “shrimp” as at risk for IUU fishing, the Task Force condemns a large industry segment of imports for alleged violations committed, if at all, by a far smaller segment comprising a very small slice of U.S. consumption. This effectively turns the process on its head, making shrimp farmers and the U.S.-based processors they supply responsible for illegally fishing a product that cannot be fished.

As with the GAA, NFI complains that the imposition of a traceability program on such products will have a significant market impact, “consigning large and important segments of the international trade in seafood to a perpetual and burdensome reporting requirement that will come at a significant cost in money and in operational difficulties.”

This pessimistic view was echoed by other commentators. Ecuador’s National Chamber of Aquaculture claimed that “[b]eing designated an IUU or fraud species will have significant impact on Ecuador’s processors, requiring the tracking of significant new amounts of data.” The China Aquatic Products Processing and Marketing Alliance (CAPPMA) included the following in its comments to the Committee: “CAPPMA would like to remind that the massive traceability program and compliance proposed by the Task Force may cause a serious disruption of supply chain and maybe unrealistic to get implemented.” And the Vietnam Association of Seafood Exporters and Producers (VASEP) asserted that “[t]he list of ‘at risk’ species will form the basis of an expensive and complex traceability mechanism that will present significant difficulties for both parties exporting to the United States as well as importers in the United States.” VASEP further predicts that “[t]he current version would likely cause significant compliance costs for foreign exporters by empowering at least Customs and Border Protection, the Food and Drug Administration, and the NOAA to enforce and oversee various aspects of the program.”

VASEP did not stop there. Providing fuel to fire widespread concerns voiced regarding the potential Trans-Pacific Partnership that foreign businesses intend to use trade agreements to assault U.S. food safety regulations, VASEP claims that “what is publicly available about the Task Force’s traceability program suggests that it will violate legal obligations under the WTO.” VASEP further posits that “the traceability program will necessarily include testing, verification, and certification procedures enforced by several government agencies” and that “such stringent measures could create unnecessary obstacles to trade in violation of the Agreement on Technical Barriers to Trade.”

The publication Friday of the NOC Committee’s list of “at-risk” species answered these criticisms. The NOC Committee observed that it received comments requesting that “aquaculture species be exempt from the pending traceability program, and removed from the list of at-risk species because aquacultured species are not subject to IUU fishing.” In response, the Committee noted that “[b]oth wild caught and aquacultured seafood can be at risk of seafood fraud (e.g., farmed shrimp mislabeled as wild-caught) and therefore both are included on the list of at-risk species.”

Implicit in the identified list is a finding by the federal government that industry has not taken sufficient steps on its own to address IUU fishing and seafood fraud with respect to the products listed. In fact, the NOC Committee declined to include certain groups of seafood products, including toothfish and Bluefin tuna, based on a determination that existing measures already in place with respect to those products mitigated the risks of IUU fishing and seafood fraud. The NOC Committee further declined to include catfish within the “at-risk” species because of a rulemaking on catfish inspection that is “under development, separate from the NOC Committee and Working Group actions.” The NOC Committee observed that “[o]nce in effect, this pending rulemaking may mitigate risks identified by the Working Group.”

For its part, U.S. seafood importing interests do not appear to have helped themselves by premising their objections on claims that do not withstand scrutiny. For instance, NFI alleges that any call for a traceability program:

Ignores the simple fact that seafood fraud related to imported and domestic product occurs overwhelmingly in the United States and cannot possibly be addressed by targeting overseas producers who have no connection to the violations in question.

And yet the seafood industry publication Undercurrent News reported that at the Global Outlook on Aquaculture Leadership (GOAL) conference convened just this last week in Vancouver, the CEO of the Malaysian shrimp company Blue Archipelago, Abu Bakir Ibrahim, acknowledged that issues related to Malaysian shrimp exports to the United States were rooted in false labeling of those products overseas:

Ibrahim also noted that the group had identified the source of an issue that cause the US Food and Drug Administration to refuse shipments of shrimp from Malaysia due to antibiotic residues. The issue was found to be with transshipments, and is being addressed, with only one shipment turned down in September, said Ibrahim.

There is little objective support for the assertion that seafood fraud is a problem owned primarily at any one part of the seafood supply chain. Anecdotal evidence regarding fraudulent practices by any one segment can be met by voluminous anecdotal evidence of fraudulent practices by other segments of the seafood supply chain.

Although the specific design of a traceability program for shrimp or any other seafood product has yet to be determined, the promise of a such a program is enhanced consumer confidence in seafood products that are, indeed, “at-risk” for IUU fishing and seafood fraud. This should be the shared objective of everyone involved in putting shrimp and other seafood on the plates of American consumers. The NOC Committee’s publication of “at-risk” species, including shrimp, is another positive step in the right direction.

On Friday, the Federal Register published Notice of the National Ocean Council (NOC) Committee’s finalized principles for determining seafood species at risk of Illegal, Unreported, and Unregulated (IUU) Fishing and seafood fraud, as well as a list of “at-risk” species developed using these principles. Both the list of principles and the list of species are intended to inform the development […]

Yesterday, the Southern Shrimp Alliance submitted formal comments to the National Ocean Council (NOC) Committee regarding “principles” to be used in determining which seafood species are “at risk” for Illegal, Unreported, and Unregulated (IUU) Fishing and seafood fraud. In those comments, the Southern Shrimp Alliance observed that the “possible principles” identified in the request for comments published in the Federal […]